In Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, (3d Cir., Sept. 17, 2019), the U.S. Third Circuit Court of Appeals, in a 2-1 decision, held that the County of Lackawanna Transit System’s ban on bus advertising that promotes religious views violates the First Amendment. Plaintiff’s proposed ad that featured the word “Atheists” along with the group’s name and website was rejected under this policy. The majority said in part:
The 2013 policy’s ban on speech related to religion discriminates on the basis of viewpoint. And it is not a permissible limitation on COLTS’s forum, however that forum is characterized.
Judge Cowen dissenting said in part:
I do not believe that the transit system’s policy rises to the level of viewpoint discrimination. As the D.C. Circuit has recently explained, there is a critical difference between the prohibition of religious (and atheistic) perspectives on otherwise permissible subject matters—which constitutes viewpoint discrimination—and the exclusion of religion itself as a subject matter—which does not.
WNEP News reports on the decision.